1. The interpretation of a statute and the constitutionality of a sentencing statute are
questions of law subject to an appellate court's unlimited review.

2. When the defendant is charged with an off-grid severity level offense of rape of a child
under 14 years of age under K.S.A. 21-3502(a)(2), the defendant's age is an element of the
crime that must be submitted to a jury and proven beyond a reasonable doubt before a
defendant may be sentenced for an off-grid severity level offense under K.S.A. 21-4643.

3. Omitting the defendant's age from a complaint or from jury instructions does not eliminate
the existence of the crime of rape or invalidate a criminal conviction for that offense. The
crime severity level is then characterized as the applicable Kansas Sentencing Guidelines
Act severity level stated in K.S.A. 21-3502(c) rather than as an off-grid offense.

4. Issues raised in passing that are not supported with argument or cited authority are
deemed waived.

5. Appellate courts do not require a contemporaneous objection to preserve questions of
prosecutorial misconduct for comments made during a prosecutor's voir dire, opening
statement, or closing argument.

6. Allegations of prosecutorial misconduct are subject to a two-step analysis, which inquires
(1) whether the prosecutor's conduct was outside the wide latitude allowed prosecutors
when arguing cases; and (2) if so, whether that conduct deprived the defendant of a fair
trial.

7. Because it is the prosecutor's duty in a criminal matter to properly present the State's case
with earnestness and vigor and to use every legitimate means to bring about a just
conviction, prosecutors are afforded wide latitude in arguing their cases. Inherent in this
wide latitude is the freedom to craft an argument that includes reasonable inferences based
on the evidence.

Kerwin L. Spencer, of Wellington, argued the cause, and Rachel L.
Pickering, Kansas Appellate Defender
Office, was with him on the brief for appellant.

Evan C. Watson, assistant county attorney, argued the cause, and Kassie
L. McEntire, county attorney,
and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Gary L. Morningstar, Jr., appeals his convictions and sentences for one count
of rape of a child under the age of 14 contrary to K.S.A. 21-3502(a)(2); one count of aggravated
battery contrary to K.S.A. 21-3414; one count of abuse of a child contrary to K.S.A. 21-3609;
and one count of aggravated endangering a child contrary to K.S.A. 21-3608a. For his conviction
of rape of a child under the age of 14, Morningstar received a sentence of life imprisonment
without the possibility of parole for 25 years and postrelease supervision for life pursuant to
K.S.A. 21-4643, commonly referred to as Jessica's Law. He was sentenced to 48 months, 34
months, and 7 months for the remaining convictions. All sentences were ordered to run
concurrently.

For the reasons explained below, we affirm the convictions but vacate Morningstar's
off-grid severity level sentence under Jessica's Law for rape of a child under the age of 14. We
remand for resentencing on that count under the Kansas Sentencing Guidelines Act (KSGA). Our
rationale for ordering this resentencing is consistent with this court's recent dispositive holdings in
State v. Bello, 289 Kan. 191, 199-200, 211 P.3d 139, 144-45 (2009), and State v.
Gonzales, 289 Kan. 351, 370-71,
212 P.3d 215 (2009). Both decisions conclude that to sentence a defendant to
an off-grid severity level sentence under Jessica's Law for aggravated criminal sodomy under
K.S.A. 21-3506 or aggravated indecent liberties with a child under K.S.A. 21-3504, a defendant's
age must be determined by a jury. The relevant reasoning in each of those cases is applicable here.

We address three arguments raised by Morningstar in this appeal: (1) whether the jury was
required to determine Morningstar was 18 years of age or older before convicting him of rape
under K.S.A. 21-3502, or before sentencing him under K.S.A. 21-4643(a); (2) whether the rape
instruction was clearly erroneous because it omitted Morningstar's age as an element of rape; and
(3) whether there was prosecutorial misconduct during closing arguments. We decline to address
Morningstar's alternative arguments regarding a disproportionate/cruel or unusual sentence and
the district court's denial of his request for a downward departure sentence.

Facts and Procedural Background

On October 13, 2006, Morningstar was home watching B.M., his 6-month-old daughter.
Morningstar called B.M.'s mother at work. She testified Morningstar was hysterical, and he asked
her to come home because B.M. was bleeding. When the mother got to the apartment, B.M. was
naked and lying in an empty bathtub. She put a diaper on B.M., grabbed a blanket, and drove
B.M. to the hospital. Later, she told a detective that Morningstar refused to go with them to the
hospital. The examining doctor contacted police for a sexual abuse evaluation after determining
there was a tear in B.M.'s vaginal wall.

A sexual assault nurse testified B.M. had a 1-centimeter laceration starting at the hymen
that "went all the way through or down to her rectum." This nurse testified she had been involved
in 188 prior sexual assault cases, and she described B.M.'s injuries as the worst trauma she had
ever seen to a child. She also testified the injury was caused by a blunt force trauma extensive
enough to cause B.M.'s vaginal skin to rip. Disputing Morningstar's explanation for B.M.'s
injuries, the nurse testified there would not be enough force used during a diaper change to cause
such damage.

The pediatric surgeon who treated B.M. testified the infant had a "grade three perineal
laceration" of the tissues at the back of the vagina and of the anal sphincter that did not extend
into the rectum. He described the injury as bad and extremely rare in a child. He testified B.M.'s
injury was similar to one that would "occur perhaps after a precipitous delivery in a woman . . .
who had not delivered before."

Morningstar told B.M.'s mother his finger slipped inside B.M. while he was changing her
diaper. Morningstar told a detective B.M. had a messy diaper and "in the process of changing that
diaper that his daughter had tensed up and that his finger . . . went inside." He also told the
detective that he was changing the diaper in a bedroom, and when B.M. became injured, he tried
to control the bleeding with wipes and paper towels. In the process, Morningstar told the
detective he put B.M. in the bathtub so he could call B.M.'s mother.

The relevant portion of the jury instruction on the rape charge came from PIK Crim. 3d
57.01 and stated:

"The defendant is charged in Count 1 with the crime of rape. The defendant pleads
not
guilty.

"To establish this charge, each of the following claims must be proved:

"1. That the defendant had sexual intercourse with B.D.M.

"2. That B.D.M. was under 14 years of age when the act of sexual intercourse
occurred;
and

"3. That this act occurred on or about the 13th day of October 2006, in Sumner
County,
Kansas."

Morningstar did not object to this instruction at trial. After Morningstar was convicted as
charged, he filed a motion for new trial, arguing the verdict was contrary to the evidence. He also
pursued a motion for judgment of acquittal, arguing there was reasonable doubt. Both motions
were denied. Morningstar filed a motion for a downward departure sentence, which was also
denied. Morningstar timely appealed to this court. Our jurisdiction is proper under K.S.A.
22-3601(b)(1) (off-grid crime; life sentence).

(1) Is Morningstar's conviction valid?

Morningstar argues his age--specifically, whether he was 18 years of age or older at the
time the rape was committed--is an element of rape under K.S.A. 21-3502(a)(2) and under the
enhanced sentencing provisions under K.S.A. 21-4643(a)(1). He argues there was insufficient
evidence to convict him because the State did not introduce any evidence that he was 18 years of
age or older.

The State does not contest Morningstar's claim that it did not introduce evidence
regarding Morningstar's age during trial. Similarly, Morningstar does not dispute he was 18 years
of age or older. The complaint listed Morningstar's year of birth as 1985. In his financial affidavit
requesting a court-appointed attorney, Morningstar wrote he was born on June 24, 1985, making
him 21 years old at the time of the offense.

Therefore, the issues regarding defendant's age are: (1) whether his age is an element of
rape under K.S.A. 21-3502(a)(2); and (2) whether his age must be proven to the jury in order to
sentence him under Jessica's Law in accordance with the dictates of Apprendi v. New
Jersey, 530
U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Because these questions concern statutory
and constitutional interpretation, our review is unlimited. Bello, 289 Kan. at 195,
211 P.3d at 142;
State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008) (statutory interpretation is a
question of
law subject to de novo review); State v. Allen, 283 Kan. 372, 374, 153 P.3d 488
(2007)
(constitutionality of sentencing statute is a question of law subject to unlimited review).

Morningstar was convicted of rape under K.S.A. 21-3502(a)(2). The statute provides in
pertinent part:

"(a) Rape is:

. . . .

(2) sexual intercourse with a child who is under 14 years of age;

. . . .

"(c) Except as provided further, rape as described in subsection (a)(1) or (2) is a
severity
level 1, person felony. Rape as described in subsection (a)(2), when the offender is 18 years
of
age or older, is an off-grid person felony." (Emphasis added.)

K.S.A. 21-3501(1) defines sexual intercourse as "any penetration of the female sex
organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient
to constitute sexual intercourse." The sentences for off-grid crimes are set forth in K.S.A.
21-4706, which provides in relevant part:

"(d) As identified in K.S.A. . . . 21-3502, . . . and amendments thereto, if the
offender is
18 years of age or older and the victim is under 14 years of age, such violations are off-grid
crimes for the purposes of sentencing. Except as provided in K.S.A. 21-4642, and amendments
thereto, the sentence shall be imprisonment for life pursuant to K.S.A. 21-4643, and amendments
thereto." (Emphasis added.)

Morningstar was sentenced under K.S.A. 21-4643(a)(1), which states:

"[A] defendant who is 18 years of age or older and is convicted of the following crimes
committed on or after July 1, 2006, shall be sentenced to a term of imprisonment for life with a
mandatory minimum term of imprisonment of not less than 25 years . . . .

. . . .

"(B) rape, as defined in subsection (a)(2) of K.S.A. 21-3502, and amendments
thereto."

The same crime-defining statutory structure was addressed recently in Bello.
289 Kan. at
198, 211 P.3d at 144. In Bello, the defendant was convicted of aggravated criminal
sodomy under
K.S.A. 21-3506 and aggravated indecent liberties with a child under K.S.A. 21-3504. This court
noted each of those statutes set forth two separate severity levels of the offense applicable to the
acts the defendant committed: one a KSGA nondrug grid box offense and the other an off-grid
offense. 288 Kan. at 198, 211 P.3d at 144. The court reasoned:

"The determination of which offense applies turns on whether the offender was age
18
or older when committing the criminal act.

The structure of the crime-defining statutes here is akin to that of the theft statute,
K.S.A. 21-3701, which describes varying levels of offenses based upon the additional fact of the
stolen property's value. See State v. Stephens, 263 Kan. 658, Syl. ¶ 2, 953 P.2d
1373 (1998)
(degree of a theft crime determined by the value of the property stolen); State v.
Piland, 217 Kan.
689, Syl. ¶ 3, 538 P. 2d 666 (1975) (where value of stolen property is in issue, trial court
should
instruct the jury with respect to the element of value and require a jury finding as to
value). Thus,
while K.S.A. 21-4643 reiterates the age factor which elevates the sentence for aggravated
criminal sodomy or aggravated indecent liberties with a child to a hard 25 life sentence, that
severity-enhancing factor is initially identified in the statutes defining the respective crimes." 289
Kan. at 198, 211 P.3d at 144.

Similarly, the express terms of K.S.A. 21-3502(a)(2) contain two elements of rape: (1)
sexual intercourse; and (2) with a child who is under 14 years of age. The defendant's age is not
an element under this statute. It is the enhanced sentencing statute, K.S.A. 21-4643, that requires
the additional factual determination about the defendant's age before a court may impose a life
sentence. Accordingly, the Bello court's logic is applicable to Morningstar's
conviction for rape of
a child under 14 years of age.

Omitting the defendant's age from a complaint or from jury instructions does not eliminate
the existence of the crime of rape of a child under 14 years of age or invalidate a criminal
conviction for that offense. But the severity level for the offense is the applicable KSGA severity
level stated in K.S.A. 21-3502(c) rather than an off-grid offense. Morningstar's conviction for
rape of a child under 14 years of age is valid.

(2) Is Morningstar's off-grid sentence valid?

A question remains as to whether the failure to instruct the jury on Morningstar's age
means the aggravated sentence under Jessica's Law is invalid. When, as here, a party did not
object to the instruction at trial, this court reviews the instruction for clear error. See State
v.
Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). Reversal is proper if and only if
there was
a real possibility the jury would have returned a different verdict. 282 Kan. at 581. For this issue,
we again turn to the rationale in Bello, where the court answered this question by
applying
Apprendi. The Bello court explained:

"In Apprendi, the Supreme Court clarified that merely because a state
legislature places
a sentence enhancing factor within the sentencing provisions of the criminal code does not mean
that the factor is not an essential element of the offense. Apprendi, 530 U.S. at 495. If
a
'sentencing factor' is used to increase a defendant's sentence beyond the maximum authorized
statutory sentence, it is the functional equivalent of an element of a greater offense than the one
covered by the jury's guilty verdict." (Emphasis omitted.) 289 Kan. at 199, 211 P.3d at 144.

Based on Apprendi and its progeny, the Bello court stated, "a
defendant's right to a jury
trial is violated where the judge makes the sentence enhancement factfinding, rather than the
jury." 289 Kan. at 199, 211 P.3d at 144. The Bello court concluded, " [T]he fact that
Bello was age
18 years or older at the time he committed the offense needed to have been submitted to the jury
and proved beyond a reasonable doubt." 289 Kan. at 199, 211 P.3d at 145 (citing State v.
Gould,
271 Kan. 394, Syl. ¶ 2, 23 P.3d 801 [2001]).

In Morningstar's case, the State also failed to present evidence of his age at trial, and the
jury was not instructed to make a finding regarding Morningstar's age. Applying the
Bello holding
to the statutes and facts applicable here, we find that when a defendant is charged with an off-grid
severity level offense of rape of a child under 14 years of age, the defendant's age is an element
that must be submitted first to the jury and proven beyond a reasonable doubt before a defendant
can be sentenced for the off-grid severity level offense specified in K.S.A. 21-4643.

In other words, the instructions issued do not amount to clear error because the rape
conviction is valid. But the recommended rape instruction in PIK Crim. 3d 57.01, which was used
in Morningstar's case, is insufficient to sentence a defendant to the off-grid offense under K.S.A.
21-4643.

Morningstar's conviction is upheld, but the sentence imposed on him under K.S.A.
21-4643 is vacated. The case is remanded for resentencing on Count One of the complaint (rape
of a
child under 14 years of age) as a felony on the KSGA nondrug sentencing grid.

(3) Was there Prosecutorial Misconduct?

Next, Morningstar argues the prosecutor committed misconduct during closing arguments
when the prosecutor commented that Morningstar left B.M. unsupervised in the bathtub.
Defendant argues these statements referred to evidence that was not in the record, and implied
Morningstar attempted to inflict additional harm on the child. We find this argument fails under
the prosecutorial misconduct test because the statements at issue did not exceed the wide latitude
given prosecutors during closing arguments and the statements were not plain error.

This prosecutorial misconduct claim arises from the following statements made during
closing arguments:

"The defendant caused this injury by penetrating [B.M.'s] vagina with such a force
that
her genitals ripped. Then he laid her in a bathtub and left her alone. During this critical medical
emergency, the defendant doesn't take [B.M.] to the hospital. He doesn't call 911. He doesn't even
stay next to her and comfort her. What he does do is he leaves her alone in the bathtub. He calls
B.M.'s mother to come home from work and take care of the situation he caused. Then he cleans
up the mess."

Morningstar did not contemporaneously object to the State's comments, but a timely
objection is not required to preserve a prosecutorial misconduct claim that occurs during closing
statements. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009); State v.
Decker, 288 Kan.
306, 314, 202 P.3d 669 (2009). The court employs a two-step analysis regardless of whether a
timely objection is made.

First, the court determines whether the prosecutor's statements exceeded the wide latitude
of language and manner afforded a prosecutor. Inherent in this latitude is the prosecutor's freedom
to argue reasonable inferences from the evidence. Second, the court must determine whether the
prosecutor's comments constitute plain error. This occurs when the statements are so gross and
flagrant that they prejudiced the jury against the defendant, denying the defendant a fair trial. This
requires examination of three factors: (1) whether the misconduct is so gross and flagrant it
denied the accused a fair trial; (2) whether the remarks show ill will; and (3) whether the evidence
against the defendant is of such a direct and overwhelming nature that the prosecutor's statements
would not have much weight in the jurors' minds. Decker, 288 Kan. at 314-15; see
State v. Tosh,
278 Kan. 83, 97-98, 91 P.3d 1204 (2004). None of these three factors is controlling. Further, the
third factor can never override the first two factors until the harmlessness tests of both K.S.A.
60-261 (prosecutor's statements were inconsistent with substantial justice) and Chapman v.
California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (error had little, if any,
likelihood of changing the outcome of trial), have been met. State v. Scott, 286 Kan.
54, 78-79,
183 P. 3d 801 (2008).

Morningstar argues the statements fell outside this wide latitude because, he alleges, there
is no evidence Morningstar left B.M. in the bathtub unsupervised. On the other hand, the State
argues the statements are a reasonable inference based on the evidence. The record reflects a
detective testified Morningstar told her the following:

"[Morningstar] talked about using wipes as well as getting paper towels or using paper
towels. He
then talked about how he had taken his daughter and put her in the bathtub. . . . He talked about
calling [B.M.'s mother] . . . at work and how she had come home shortly thereafter."

We believe it is reasonable to infer from the detective's testimony that she was reciting the
sequence of events as given by Morningstar. It also is reasonable to infer Morningstar left the
bathroom to call B.M.'s mother. Therefore, the prosecutor did not commit misconduct.

But even if these statements exceeded the prosecutor's wide latitude, they still were not
plain error that prejudiced Morningstar's right to a fair trial. There is no evidence of ill will, and
the evidence against Morningstar was substantial. Morningstar admitted he caused B.M.'s injuries.
There was significant medical testimony that a finger slip during a diaper change would not cause
the injury B.M. suffered, which was the excuse Morningstar gave. He also did not accompany his
injured daughter to the emergency room. The prosecutor's statements were designed to
communicate a callous reaction Morningstar arguably had to B.M.'s injuries. In light of the
substantial evidence against him, the prosecutor's statements did not prejudice Morningstar's
defense.

Finally, and because it was briefly addressed in oral argument in response to a specific
question, we note Morningstar references a tangential issue in his brief that the State failed to
properly identify him at trial. But this is raised only in conjunction with the State's failure to
establish that Morningstar was 18 years of age or older, and mentioned only under the section of
Morningstar's brief dealing with the defendant's age. No real argument is advanced, nor was there
any citation to relevant case law in this regard, so we will not consider it. Issues raised in passing
that are not supported with argument or cited authority are deemed waived. State v.
Harned, 281
Kan. 1023, 1048, 135 P.3d 1169 (2006).

In light of our holding, it is unnecessary to address Morningstar's alternative arguments
regarding a disproportionate/cruel or unusual sentence and the district court's denial of his request
for a downward departure sentence.

Convictions affirmed, sentence as to Count One of the complaint (rape of child under 14
years of age) vacated, and case remanded for resentencing as to Count One.